The content of natural justice and the standard for judicial review of non-compliance has undergone a change after principles of natural justice were constitutionalized in Maneka Gandhi v. Union of India[1]

Two jurisprudential developments on the interpretation of Part III of the Constitution must be noticed to understand the impact of constitutionalising the principles of natural justice. The first, is the expansion of the meaning of the expression ‘procedure established by law’ as it finds place in Article 21 of the Constitution to include procedural due process. The second, is the shift from reading the provisions of Part III of the Constitution as isolated silos to understanding the overlapping tendencies of fundamental rights.

A.K. Gopalan Case

In AK Gopalan v. State of Madras[2], the appellant contended that the phrase ‘procedure established by law’ as it finds place in Article 21 includes within its ambit the principles of natural justice. While the majority rejected this contention, Justice Fazl Ali in his celebrated dissent held that the expression ‘procedure established by law’ cannot be given a limited meaning.

The learned Judge observed that the phrase must include procedural due process which includes (i) issuance of a notice (ii) an opportunity to be heard; (iii) an impartial tribunal; and (iv) an orderly course of procedure. Justice Fazl Ali’s opinion was followed by Supreme Court in Maneka Gandhi (supra).

Maneka Gandhi Case

In Maneka Gandhi (supra), it was held that the life and liberty of a person cannot be restricted by any procedure that is established by law but only by a procedure that is just, fair, and reasonable.

In that case, the appellant challenged the order of the Regional Passport Officer impounding her passport. The impounding order did not disclose the reasons for such action. The Government of India declined to disclose its reasons for the action by relying on Section 10(5) of the Passports Act 1967 which stipulates that the reason for impounding the passport may not be given where the passport authority is of the opinion that the disclosure of reasons is not in the interests of the sovereignty and integrity of India, security of India, friendly relations of India with any foreign country or in the interest of general public.

The appellant filed a writ petition, inter alia, challenging the action of the Government of India declining to give reasons. The Court observed that the right to go abroad is an extension of the right to life and personal liberty protected under Article 21 of the Constitution. This right, it was observed, can only be taken away by a procedure that is not unfair, arbitrary, and unreasonable.

Relying on the judgment of a Constitution Bench of the Court in RC Cooper v. Union of India[3] which had held that fundamental rights are not water-tight compartments, it was observed that the principle of reasonableness that is guaranteed under Article 14 of the Constitution projects on the procedure that is contemplated by Article 21. Thus, every individual has a right to a reasonable hearing:

“[..] we find that even on principle the concept of reasonableness must be projected in the procedure contemplated by Article 21, having regard to the impact of Article 14 on Article 21. […] The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be “right and just and fair” and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied.”

The Court held that principles of natural justice infuse reasonableness into the procedure. However, the court noted that the principles of natural justice are not set-in stone and are by their very nature modifiable. So, the violation of every conception of natural justice will not necessarily render the procedure unreasonable and violative of Articles 21 and 14.

The court held that the test that must be followed to determine if non-compliance of natural justice has led to an unreasonable procedure is whether the procedure that was followed (or the procedure that was not followed) violates the core of the primary tenets of natural justice- the right to a fair hearing and the right against bias.

On the facts of the case, Justice Bhagwati held that the procedure for impounding a passport under the provisions of the Passport Act 1967 was fair and just. The learned Judge held that the denial of pre-decisional hearing was justified because otherwise, the purpose of impounding the passport which is to take prompt action would be defeated, and that the exceptional circumstances reasonably justified the departure from the settled principle of pre-decisional hearing.

The effect of Maneka Gandhi Case

The judgment of this Court in Maneka Gandhi (supra) spearheaded two doctrinal shifts on procedural fairness because of the constitutionalising of natural justice.

Firstly, procedural fairness was no longer viewed merely as a means to secure a just outcome but a requirement that holds an inherent value in itself. In view of this shift, the Courts are now precluded from solely assessing procedural infringements based on whether the procedure would have prejudiced the outcome of the case. Instead, the courts would have to decide if the procedure that was followed infringed upon the right to a fair and reasonable procedure, independent of the outcome.

In compliance with this line of thought, the courts have read the principles of natural justice into an enactment to save it from being declared unconstitutional on procedural grounds.

Secondly, natural justice principles breathe reasonableness into the procedure. Responding to the argument that the principles of natural justice are not static but are capable of being moulded to the circumstances, it was held that the core of natural justice guarantees a reasonable procedure which is a constitutional requirement entrenched in Articles 14,19 and 21.

The facet of audi alteram partem encompasses the components of notice, contents of the notice, reports of inquiry, and materials that are available for perusal. While situational modifications are permissible, the rules of natural justice cannot be modified to suit the needs of the situation to such an extent that the core of the principle is abrogated because it is the core that infuses procedural reasonableness. The burden is on the applicant to prove that the procedure that was followed (or not followed) by the adjudicating authority, in effect, infringes upon the core of the right to a fair and reasonable hearing.


Madhyamam Broadcasting Limited v. Union of India, (2023)

[1] (1978) 1SCC 248

[2] AIR 1950 SC 27

[3] (1970) 1 SCC 248